Rossman v. Windermere Owners LLC

• Decision Date: 13 October 2020
• Docket Number: Case No. 2019-2688,12031,Index No. 108350/2011
• Citation: Rossman v. Windermere Owners LLC, 187 A.D.3d 527, 134 N.Y.S.3d 13 (N.Y. App. Div. 2020)
• Parties: Arnold ROSSMAN, Plaintiff–Respondent, v. WINDERMERE OWNERS LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 527

134 N.Y.S.3d 13

Arnold ROSSMAN, Plaintiff–Respondent,

v.WINDERMERE OWNERS LLC, et al., Defendants–Appellants.

12031

Index No. 108350/2011

Case No. 2019-2688

Supreme Court, Appellate Division, First Department, New York.

Entered: October 13, 2020

Cullen & Associates, P.C., New York (Kevin D. Cullen of counsel), for appellants.

Office of Marc Bogatin, New York (Marc Bogatin of counsel), for respondent.

Webber, J.P., Mazzarelli, Oing, Shulman, JJ.

Judgment, Supreme Court, New York County (Frank P. Nervo, J.), entered January 24, 2019, awarding plaintiff the total amount of $822,900.43, and bringing up for review an order, same court and Justice, entered on or about January 4, 2019, which, following a nonjury trial, awarded plaintiff a rent-stabilized lease at a monthly rent of $470.72 and awarded overcharge damages and treble damages, unanimously modified, on the law and on the facts, to vacate the damages award and remand to the trial court for a specific determination of whether defendants' conduct constituted a fraudulent scheme to deregulate the apartment, and, if warranted, to recalculate the legal, regulated rent based on such findings, and otherwise affirmed, without costs.

The evidence at trial supported a declaration that plaintiff was entitled to a rent-stabilized lease and damages for rent overcharges, treble damages, and attorneys' fees.The trial court determined, relying on plaintiff's expert's testimony, that the work listed in the invoices proffered by defendants either was not performed as described or constituted a repair rather than an improvement.Defendants did not call their principal or any other witness to rebut the expert testimony, and the trial court had a basis to credit the expert's testimony over the testimony of the contractors' principals.The court's consideration of the useful life of the work performed in the 1990s did not change the outcome of its analysis, which turned in large part on the credibility of the witnesses and was supported by other evidence, and we therefore decline to disturb its findings (seeThoreson v. Penthouse Intl.,80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369[1992] ).

Although defendants assert that they relied on Division of Housing and Community Renewal(DHCR) guidance in policy statement 90–10 to establish what work was performed in the apartment through invoices, and therefore they were entitled to present invoices without the testimony of a witness with personal knowledge, nothing in the DHCR guidance provides that such proof cannot be rebutted with other evidence, such as the expert evidence presented here that showed that a significant portion of the alleged work was not performed or did not constitute improvements ( DiLorenzo v. Windermere Owners LLC,174 A.D.3d 102, 117–18, 104 N.Y.S.3d 65[1st Dept.2019] ).

Specifically, the trial court here noted that the parties' witnesses' respective credibility was the subject of extensive cross-examination and properly determined that defendants' evidence was rebutted by expert testimony (seeSafka Holdings, LLC v. 220 W. 57th St. L.P.,142 A.D.3d 865, 866, 37 N.Y.S.3d 546[1st Dept.2016] ).Based on these credibility assessments, and defendants' failure to offer evidence of their good faith, defendants failed to rebut the presumption of willfulness in the overcharging of rent and removal of the apartment from rent stabilization in order to avoid the imposition of treble damages (see e.g.Smoke v. Windermere Owners, LLC,173 A.D.3d 500, 501, 104 N.Y.S.3d 60[1st Dept.2019] ).

With respect to the calculation of...